BIA: Interpret “relating to” language in firearms aggravated felony provision broadly
The BIA held that the “relating to” language in the aggravated felony provision sanctioning convictions for certain firearms offenses is to be read broadly. Matter of Oppedisano, 26 I&N Dec. 202 (BIA 2013) (Pauley, Guendelsberger, and Malphrus, Board Members). Board Member Pauley wrote the panel’s opinion.
This case involved an LPR convicted of unlawful possession of ammunition by a felon, 18 U.S.C. 922(g)(1). DHS claimed that this conviction rendered him removable because it constitutes an aggravated felony under INA § 101(a)(43)(E)(ii) which provides that “an offense described in…section 922(g) (1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924 (b) or (h) of title 18, United States Code (relating to firearms offenses)” is an aggravated felony. The IJ agreed.
On appeal to the Board, Oppedisano argued that the “relating to firearms offenses” parenthetical “expressly restricts the offenses included [in INA § 101(a)(43)(E)(ii)] to those involving firearms.” Matter of Oppedisano, 26 I&N Dec. at 203. If this were correct, then his ammunition conviction would not constitute a firearms offense type of aggravated felony.
The Board, however, disagreed with Oppedisano. According to the panel, “courts interpreting the nature of ‘relating to’ parentheticals have found that they are ‘widely understood to have a descriptive import’.” Matter of Oppedisano, 26 I&N Dec. at 204 (internal citations omitted). Moreover, “[t]he Board and courts of appeals ‘have consistently ruled that the phrase ‘relating to’ has an expansive meaning.’” Matter of Oppedisano, 26 I&N Dec. at 204 (quoting Matter of Gruenangerl, 25 I&N Dec. 351 (BIA 2010)). When Congress wants to use a parenthetical as a means of limiting the application of a statutory provision, the Board added, it knows how to accomplish that—by using “clear and distinct” language such as “except,” “if,” and “but not including.” Matter of Oppedisano, 26 I&N Dec. at 204-205. In INA §§ 101(a)(43)(F) and (J), for example, Congress included language that explicitly limits how broadly the statutory provision applies relying on this type of language.
Had Congress wanted the parenthetical in INA § 101(a)(43)(E)(ii) to limit application of the statutory provision it would have stated that this section of the INA’s aggravated felony definition includes “only firearms offenses” or “firearms but not ammunition offenses.” Matter of Oppedisano, 26 I&N Dec. at 205. Congress did not do so. As such, the Board “conclude[d] that Congress intended it [the parenthetical in INA § 101(a)(43)(E)(ii)] only to be descriptive of the types of offenses that are referenced in § 922(g), rather than a limitation that excludes ammunition offenses from the aggravated felony definition.” Matter of Oppedisano, 26 I&N Dec. at 206. Oppedisano, therefore, was deemed to have been convicted of a firearms offense as defined by INA § 101(a)(43)(E)(ii).
